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Frozen is a successful animated film presented by The Walt Disney Company in 2013. The film which shaped such classic cartoon images as Elsa, Anna and Olaf made a hit. The Walt Disney Company has been devoted to launching cultural and creative derivatives of these cartoon images. Backpacks, pencil cases and other cultural and creative products with the print of cartoon images Elsa, Anna and Olaf can be found everywhere in children’s daily lives. However, some merchants use the cartoon images without the authorization of The Walt Disney Company, infringing its copyright on these brands. Recently, Shanghai No. 3 Intermediate People’s Court (hereinafter the “Court”) heard a case in which three defendants and one defendant company produced trolley cases with the print of the above cartoon images of Frozen and sold them through the online stores opened on Taobao.com and Tmall.com without authorization of The Walt Disney Company, and punished them for the crime of copyright infringement. [Case Review] Through trial, the Court found that The Walt Disney Company’s Frozen has been registered with the U.S. Copyright Office, and the cartoon images of Elsa, Anna, and Olaf are from the animated film Frozen released by The Walt Disney Company. Since December 2015, the defendant Chen has been commissioning Sun to produce trolley cases with the print of the above-mentioned cartoon images of Frozen without the authorization of The Walt Disney Company. Afterwards, Sun commissioned the then actual operator of the defendant Shanghai Songxian Luggage Accessories Co., Ltd. (Hereinafter the “Songxian”) and the defendant Xu to print and produce the panels. After blistering the panels and assembling them into trolley cases, Sun sold the trolley cases to Chen. Then Chen sold the trolley cases through on-line stores opened on Taobao.com and Tmall.com such as “Datu Bags Flagship Store,” “Datu Bags,” “Horizon Bags Factory Store,” “Longlei Bags” and “Longlei Bags Franchise Store.” In June 2017, Shanghai Public Security Bureau arrested Chen and seized 76 trolley cases on the spot. Chen voluntarily confessed his crime. It was identified that the prints on the trolley cases seized at Chen’s place were substantially the same as the cartoon images of Elsa, Anna and Olaf of The Walt Disney Company’s Frozen, and the sales volume reached 2,891. [Case Study] The Court held as follows: The defendant Chen commissioned others to produce and sell the copyright infringing goods through its own on-line stores without the permission of the copyright owner for the purpose of making profits. As the number of trolley cases sold reached 2,967, constituting especially serious circumstance, and his behavior constituted copyright infringement, he should be punished according to law. The defendants Sun, Songxian Company and Xu were commissioned to jointly produce and sell copyright infringing trolley cases without the permission of the copyright owner for the purpose of making profits. As circumstance was especially serious and their behaviors constituted copyright infringement, they should be punished according to law. The defendant Chen who played the principal role in the joint crime with others was the principal criminal. After being arrested, he voluntarily confessed his crime and thus should be given lighter punishment. As he paid the fine before the court, showing good attitude towards admission of guilt, he should be given lighter punishment by law. The defendant Sun who truthfully confessed his crime after being arrested may also be given lighter punishment. The defendant Xu, the principal in direct charge of the defendant Songxian Company, voluntarily surrendered himself and truthfully confessed the defendant company’s and his own crime, thus should be given lighter or mitigated punishment. Given the criminal facts, amount, circumstances, etc. of the case, the Court gave lighter punishment to the three defendants and applied probation. The defendant Chen was convicted of the crime of copyright infringement and sentenced to fixed-term imprisonment of three years with a probation period of five years and a fine of RMB 80,000; the defendant Sun was sentenced to fixed-term imprisonment of three years with a probation period of three years and a fine of RMB 60,000; the defendant Shanghai Songxian Luggage Accessories Co., Ltd. was fined RMB 15,000; the defendant Xu was sentenced to fixed-term imprisonment of one year and six months with a probation period of one year and six months and a fine of RMB 5,000 [Relevant Laws] I. Criminal Law of the People’s Republic of China Article 217 Whoever, for the purpose of making profits, commits any of the following acts of infringement on copyright shall, if the amount of illegal gains is relatively large, or if there are other serious circumstances, be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; if the amount of illegal gains is huge or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined : (1) reproducing and distributing a written work, musical work, motion picture, television programme or other visual works, computer software or other works without permission of the copyright owner; ... Article 25 A joint crime refers to an intentional crime committed by two or more persons jointly. ... Article 26 A principal criminal refers to any person who organizes and leads a criminal group in carrying out criminal activities or plays a principal role in a joint crime. ... Any principal criminal not included in Paragraph 3 shall be punished on the basis of all the crimes that he participates in or that he organizes or directs. Article 67 ... A criminal suspect without the surrender circumstances as stipulated in the preceding two clauses, if truthfully confesses his crime, or avoids the happening of especially serious consequences because he truthfully confesses his crime, may be given lighter punishment. Article 72 Where a convict sentenced to criminal detention or imprisonment of not more than 3 years meets the following conditions, a probation may be announced, and a probation shall be announced if he is under the age of 18, is pregnant or attains the age of 75 1. The circumstances of the crime are minor; 2. He shows repentance; 3. He is not likely to commit any offense; 4. Announcing the probation will not have any major adverse impact on the community. ... If a supplementary punishment is imposed on a criminal whose sentence is suspended, the supplementary punishment shall still be executed. Article 73 The probation period for suspension of fixed-term imprisonment shall be not less than the term originally decided but not more than five years, however, it may not be less than one year. The probation period for suspension of sentence shall be counted from the date the judgment is made final. Article 52 The amount of any fine imposed shall be determined according to the circumstances of the crime. Article 64 All money and property illegally obtained by a criminal shall be recovered, or compensation shall be ordered; the lawful property of the victim shall be returned without delay; and contrabands and possessions of the criminal that are used in the commission of the crime shall be confiscated. All the confiscated money and property and fines shall be turned over to the State treasury, and no one may misappropriate or privately dispose of them. II. Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Intellectual Property Criminal Cases (II) of the Supreme People’s Court and the Supreme People’s Procuratorate Article 1 Copying and distributing a copyright holder’s written works, music, movies, television and video works, computer software and other works for making profit without the permission of the copyright holder falls into the “serious circumstance” as provided in Article 217 of the Criminal Law if the number of replicates totals more than 500 pages(copies), and falls into the “especially serious circumstance” if the number of replicates totals more than 2500 pages(copies). Article 4 For violations of intellectual property rights, the people’s courts shall give full consideration to the illegal gains, illegal business volume, the losses caused to the right holders, and the social harmfulness, and impose fines according to law. The amount of fines is generally 1-5 times as much as the illegal gains or 50%-100% of the illegal business volume. (Writer: Niu Bei, Shanghai No. 3 Intermediate People’s Court)
